AB1219: Bill Text

LRB-4361/2

RLR&MGD:jd:rs

2005 - 2006 LEGISLATURE

2005 Assembly BILL 1219

May 4, 2006 - Introduced by Representatives McCormick, Krawczyk, Musser, Staskunas, Van Roy and Turner. Referred to Committee on Judiciary.

AB1219,2,2 An Act to repeal 51.45 (12) (b) 2., 51.45 (16) (c), 977.07 (2) and 977.08 (2) (d); to renumber and amend 967.06, 977.02 (3) and 977.075 (1); to consolidate, renumber and amend 51.45 (12) (b) (intro.), 1. and 3.; to amend 20.550 (1) (f), 20.550 (1) (fb), 51.15 (9), 51.20 (3), 51.20 (18) (c), 51.35 (1) (e) 1., 51.35 (1) (e) 2. c., 51.45 (12) (c) 2., 51.45 (13) (b) 2., 51.45 (13) (d), 51.45 (13) (j), 55.06 (11) (a), 303.065 (5) (dm), 809.30 (2) (d), 814.69 (1) (a), 880.33 (2) (a) 2., 973.06 (1) (e), 977.02 (2m), 977.05 (4) (gm), 977.05 (4) (h), 977.05 (4) (i) 4., 977.06 (1) (a), 977.06 (2) (a), 977.06 (2) (am), 977.07 (1) (a), 977.07 (1) (c), 977.07 (2m), 977.075 (3), 977.075 (4), 977.075 (5), 977.08 (1), 977.08 (2) (intro.) and 977.085 (3); and to create 51.60, 51.605, 55.06 (11) (bm), 55.065, 880.33 (2) (a) 4., 967.06 (2) (b), 977.02 (3) (a) to (d), 977.075 (1g) and 977.075 (6) of the statutes; relating to: indigency determinations, provision of legal services by the State Public Defender, and requiring the exercise of rule-making authority.

Analysis by the Legislative Reference Bureau

Under current law, the State Public Defender (SPD) provides counsel to represent people in various legal proceedings, including criminal proceedings that may result in imprisonment, emergency detention or involuntary civil commitment proceedings, proceedings for the protective placement of an adult, paternity determinations, and juvenile delinquency proceedings. The SPD provides counsel to children regardless of the child's income or assets, but only provides counsel to adults whom the SPD determines are indigent under rules that the SPD adopts.

Current law provides that a person is indigent for purposes of SPD representation if the person's income and assets, after deduction for reasonable and necessary living expenses, are insufficient to cover the cost of effective legal representation. Current law equates reasonable and necessary living expenses with benefit amounts under the former Aid to Families with Dependent Children program. But, in determining whether a person can afford counsel, courts are not limited by the SPD indigency criteria. If a person is the subject of a legal proceeding for which he or she has the right to appointed counsel if he or she cannot afford counsel, and the person offers proof that he or she cannot afford counsel, the court must independently review the person's circumstances. If the court finds that the person cannot afford counsel and does not meet the criteria for SPD appointment, the court must appoint private counsel and the county in which the court sits must pay the appointed counsel.

This bill changes the criteria for determining indigency for the purposes of SPD representation. Under the bill, the SPD must adopt rules regarding indigency determinations that require the SPD, when assessing a person's eligibility, to consider the anticipated costs of effective representation for the type of case in which the person is involved. The rules must also require that assets and income be treated as available to the person to pay the costs of legal representation if they exceed the asset and income ceilings for eligibility for the Wisconsin Works (W-2) program, except that the asset exclusion for a person's home is limited to $30,000. (To be eligible for the W-2 program, a person's household assets, after excluding up to $10,000 for a vehicle and the value of the person's home, cannot exceed $2,500, and his or her household income cannot exceed 115 percent of the federal poverty line.) Third, under the rules, the SPD must treat assets or income of the person's spouse as the person's assets or income, unless the spouse was the victim of a crime that the person allegedly committed.

In addition, the bill requires the SPD to provide legal representation to any person, regardless of whether the person is indigent, who seeks SPD representation and is the subject of an involuntary commitment proceeding for mental health or alcoholism treatment, a protective placement proceeding, or a proceeding to appoint a guardian because the person is alleged to be not competent to refuse psychotropic medication. The bill provides that the court may require such a person, who is an adult, to reimburse the SPD for all or part of the costs of legal representation if the person is able to make reimbursement. Finally, the bill provides the Public Defender Board with 59.5 new full-time equivalent general purpose revenue positions on July 1, 2007 (the day on which the bill's other changes become effective).

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB1219, s. 1 Section 1. 20.550 (1) (f) of the statutes is amended to read:

AB1219,3,6 20.550 (1) (f) Transcripts, discovery, and interpreters. The amounts in the schedule for the costs of interpreters and discovery materials and for the compensation of court reporters or clerks of circuit court for preliminary examination, trial, and appeal transcripts, and the payment of related costs under s. 967.06 (3).

AB1219, s. 2 Section 2. 20.550 (1) (fb) of the statutes is amended to read:

AB1219,3,11 20.550 (1) (fb) Payments from clients; administrative costs. The amounts in the schedule for the costs of determining, collecting and processing the payments received from persons as payment for legal representation under s. 977.07 (2), 977.075 or 977.076.

AB1219, s. 3 Section 3. 51.15 (9) of the statutes is amended to read:

AB1219,4,2 51.15 (9) Notice of rights. At the time of detention the individual shall be informed by the director of the facility or such person's designee, both orally and in writing, of his or her right to contact an attorney and a member of his or her immediate family, the right to have an attorney provided at public expense, as provided under s. 967.06 and ch. 977, if the individual is a child or is indigent, 51.60, and the right to remain silent and that the individual's statements may be used as a basis for commitment. The individual shall also be provided with a copy of the statement of emergency detention.

AB1219, s. 4 Section 4. 51.20 (3) of the statutes is amended to read:

AB1219,4,10 51.20 (3) Legal counsel. At the time of the filing of the petition the court shall assure that the subject individual is represented by adversary counsel . If the individual claims or appears to be indigent, the court shall refer the person to the authority for indigency determinations specified under s. 977.07 (1). If the individual is a child, the court shall refer that child by referring the individual to the state public defender, who shall appoint counsel for the child individual without a determination of indigency, as provided in s. 48.23 (4) 51.60.

AB1219, s. 5 Section 5. 51.20 (18) (c) of the statutes is amended to read:

AB1219,4,18 51.20 (18) (c) Expenses of the proceedings from the presentation of the statement of emergency detention or petition for commitment to the conclusion of the proceeding shall be allowed by the court and paid by the county from which the subject individual is detained, committed, or released, in the manner that the expenses of a criminal prosecution are paid, as provided in s. 59.64 (1). Payment of attorney fees for appointed attorneys in the case of children and indigents shall be in accordance with ch. 977.

AB1219, s. 6 Section 6. 51.35 (1) (e) 1. of the statutes is amended to read:

AB1219,5,3 51.35 (1) (e) 1. Whenever any transfer between different treatment facilities results in a greater restriction of personal freedom for the patient and whenever the patient is transferred from outpatient to inpatient status, the department or the county department specified under par. (a) shall inform the patient both orally and in writing of his or her right to contact an attorney and a member of his or her immediate family, the right to have counsel provided at public expense, as provided under s. 967.06 and ch. 977, if the patient is a child or is indigent 51.60, and the right to petition a court in the county in which the patient is located or the committing court for a review of the transfer.

AB1219, s. 7 Section 7. 51.35 (1) (e) 2. c. of the statutes is amended to read:

AB1219,5,6 51.35 (1) (e) 2. c. The patient's right to have counsel provided at public expense, as provided under s. 967.06 and ch. 977, if the patient is a child or is indigent 51.60.

AB1219, s. 8 Section 8. 51.45 (12) (b) (intro.), 1. and 3. of the statutes are consolidated, renumbered 51.45 (12) (b) and amended to read:

AB1219,5,15 51.45 (12) (b) The physician, spouse, guardian, or a relative of the person sought to be committed, or any other responsible person, may petition a circuit court commissioner or the circuit court of the county in which the person sought to be committed resides or is present for commitment under this subsection. The petition shall: 1. State state facts to support the need for emergency treatment; 3. Be and be supported by one or more affidavits which that aver with particularity the factual basis for the allegations contained in the petition.

AB1219, s. 9 Section 9. 51.45 (12) (b) 2. of the statutes is repealed.

AB1219, s. 10 Section 10. 51.45 (12) (c) 2. of the statutes is amended to read:

AB1219,5,23 51.45 (12) (c) 2. Assure that the person sought to be committed is represented by counsel and, if the person claims or appears to be indigent, refer the person to the authority for indigency determinations specified under s. 977.07 (1) or, if the person is a child, refer that child by referring the person to the state public defender, who shall appoint counsel for the child person without a determination of indigency, as provided in s. 48.23 (4) 51.60.

AB1219, s. 11 Section 11. 51.45 (13) (b) 2. of the statutes is amended to read:

AB1219,6,8 51.45 (13) (b) 2. Assure that the person is represented by counsel and, if the person claims or appears to be indigent, refer the person to the authority for indigency determinations specified under s. 977.07 (1) or, if the person is a child, refer that child by referring the person to the state public defender, who shall appoint counsel for the child person without a determination of indigency, as provided in s. 48.23 (4) 51.60. The person shall be represented by counsel at the preliminary hearing under par. (d). The person may, with the approval of the court, waive his or her right to representation by counsel at the full hearing under par. (f).

AB1219, s. 12 Section 12. 51.45 (13) (d) of the statutes is amended to read:

AB1219,6,22 51.45 (13) (d) Whenever it is desired to involuntarily commit a person, a preliminary hearing shall be held under this paragraph. The purpose of the preliminary hearing shall be to determine if there is probable cause for believing that the allegations of the petition under par. (a) are true. The court shall assure that the person shall be is represented by counsel at the preliminary hearing and, if the person is a child or is indigent, by appointing counsel shall timely be appointed at public expense, as provided in s. 967.06 and ch. 977 for him or her under s. 51.60. Counsel shall have access to all reports and records, psychiatric and otherwise, which have been made prior to the preliminary hearing. The person shall be present at the preliminary hearing and shall be afforded a meaningful opportunity to be heard. Upon failure to make a finding of probable cause under this paragraph, the court shall dismiss the petition and discharge the person from the custody of the county department.

AB1219, s. 13 Section 13. 51.45 (13) (j) of the statutes is amended to read:

AB1219,7,6 51.45 (13) (j) Upon the filing of a petition for recommitment under par. (h), the court shall fix a date for a recommitment hearing within 10 days, and assure that the person sought to be recommitted is represented by counsel and, if the person is indigent, appoint by appointing counsel for him or her, unless waived under s. 51.60. The provisions of par. (e) relating to notice and to access to records, names of witnesses, and summaries of their testimony shall apply to recommitment hearings under this paragraph. At the recommitment hearing, the court shall proceed as provided under pars. (f) and (g).

AB1219, s. 14 Section 14. 51.45 (16) (c) of the statutes is repealed.

AB1219, s. 15 Section 15. 51.60 of the statutes is created to read:

AB1219,7,12 51.60 Appointment of counsel. (1) Adults. (a) In any situation under this chapter in which an adult person has a right to be represented by counsel, the person shall be referred as soon as practicable to the state public defender, who shall appoint counsel for the person under s. 977.08 without a determination of indigency.

AB1219,7,14 (b) Except as provided in s. 51.45 (13) (b) 2., par. (a) does not apply if the person knowingly and voluntarily waives counsel.

AB1219,7,17 (2) Children. In any situation under this chapter in which a child has a right to be represented by counsel, counsel for the child shall be appointed as provided in s. 48.23 (4).

AB1219,7,20 (3) Retained counsel. Notwithstanding subs. (1) and (2), a person subject to proceedings under this chapter is entitled to retain counsel of his or her own choosing at his or her own expense.

AB1219, s. 16 Section 16. 51.605 of the statutes is created to read:

AB1219,8,6 51.605 Reimbursement for counsel provided by the state. (1) At or after the conclusion of a proceeding under this chapter in which the state public defender has provided counsel for an adult person, the court may inquire as to the person's ability to reimburse the state for all or part of the cost of representation. If the court determines that the person is able to make reimbursement for all or part of the cost of representation, the court may order the person to reimburse the state an amount not to exceed the maximum amount established by the public defender board under s. 977.075 (6). Upon the court's request, the state public defender shall conduct a determination of indigency under s. 977.07 and report the results of the determination to the court.

AB1219,8,13 (2) Reimbursement ordered under this section shall be made to the clerk of courts of the county where the proceedings took place. The clerk of courts shall transmit payments under this section to the county treasurer, who shall deposit 25 percent of the payment amount in the county treasury and transmit the remainder to the secretary of administration. Payments transmitted to the secretary of administration shall be deposited in the general fund and credited to the appropriation account under s. 20.550 (1) (L).

AB1219,8,17 (3) By January 31st of each year, the clerk of courts for each county shall report to the state public defender the total amount of reimbursements ordered under sub. (1) in the previous calendar year and the total amount of reimbursements paid to the clerk under sub. (2) in the previous year.

AB1219, s. 17 Section 17. 55.06 (11) (a) of the statutes is amended to read: